Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1622/2019 in Suit No.7494/2004
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1622 OF 2019
CNR NO.: MHCC010044432019
IN
SUIT NO. 7494 OF 2004
(HIGH COURT SUIT NO. 3034 OF 2004)
Old Students Association ]
of Mohamed Haji Saboo Siddik ]
Institution of Engineering ]
and Technology ] ...Plaintiff
Versus
Anjuman – I – Islam and others ] ...Defendants
Appearances:
Advocate Mr. Bijliwala for the plaintiff.
Advocate Mr. Arvind Kothari for the defendants.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 3rd OCTOBER, 2019.
ORAL ORDER
1. Defendant has stated that their Advocate Mr. Patil due to
oversight missed to attend the case and thereafter the Court was on
leave and their Advocate came to know that the Order is passed on 6th
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April, 2018 and it is not complied. Defendant has further stated that if
Written Statement is not taken on record it will cause irreparable harm,
damage to him and prayed to set aside the order and allow to file
Written Statement.
2. Plaintiff has filed reply to this Notice of Motion and stated that
Notice of Motion is taken out after much delay. He has further stated
that the Court passed an Order on 6th April, 2018 in first Notice of
Motion subject to cost of Rs.1,000/. Plaintiff has further stated that, the
relief was already sought by defendant in Notice of Motion No.3548 of
2016. Hence, the relief claimed in para No.1 of the Notice of Motion
amounts to res judicata and therefore, plaintiff is barred from seeking
the relief. According to plaintiff, it has to be investigated how Advocate
Mr. Patil who did not have authority to appear in the matter on behalf
of the defendants appeared in the matter. Plaintiff has further stated
that, delay cannot be condoned as no relief for condonation of delay has
been prayed by the defendants. Plaintiff has further stated that
defendants have not challenged the second exparte Order dated 22 nd
October, 2018. Plaintiff has further stated that defendants have given
unreasonable and bogus reason for not complying with the Order dated
6th April, 2018 and prayed for rejection of the Notice of Motion.
3. Ld. Advocate for the plaintiff cited judgment of Hon'ble High
Court, Nagpur Bench in case of Shrawan S/o Gomaji Lengure vs.
Government of Maharashtra, Revenue and Forest Department
Mantralaya Mumbai 32 and Anr. in Writ Petition No.4128 of 2011,
in which it is held that, “it is rightly submitted on behalf of the petitioner
that a client should not be made to suffer for the mistake of his counsel.
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Also, since it is the case of the petitioner that similarly situated employees
were granted the relief after their original applications were allowed, it
would be necessary to grant an opportunity to the petitioner. The question
whether similarly situated employees were granted the relief or not could
be decided by the tribunal, along with the other issues after the remand.
Hence, in the circumstances of the case and in the interest of justice, it
would be necessary to quash and set aside the order of the tribunal and
remand the matter to the tribunal for a fresh decision, on merits, in
accordance with law”. In the case in hand also defendant has pleaded
that there was mistake of their Advocate and therefore, considering the
nature of the suit, it appears it will cause injustice to defendant if not
allow to file Written Statement on record.
4. Ld. Advocate for defendant cited on the same point judgment of
the Hon'ble High Court, Nagpur Bench in case of Sau. Smita w/o
Shashikant Bagul vs. Shashikant s/o Shyam Bagul in Family Court
Appeal No.19/2016, in which it is held that, “a client should not suffer
for the mistake of his Counsel and in the circumstances of the case, since
the wife was residing far away from Nagpur, an opportunity needs to be
granted to the wife for defending the Hindu Marriage Petition filed by the
husband for a decree of divorce. But in view of the subsequent
development, it would be necessary to grant an opportunity to the wife to
crossexamine the husband”. Ld. Counsel for defendant further cited on
the same point judgment of Hon'ble High Court, Aurangabad Bench in
case of Anjebhau Gulabrao Chavan and another vs. The Oriental
Insurance Co. Ltd. and others in Civil Application No.6490 of 2019
in First Appeal No.147 of 2001 decided on 13th June, 2019, in which
it is held that, “it is not desirable to allow the clients to suffer for the
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mistake of their Advocate”. Ld. Counsel for the defendant further cited
on the same point judgment of Hon'ble High Court, Nagpur Bench on
the same point in case of Ramesh son of Shankarrao Londhe vs.
Prafulla Gadge, Director, Vastu Vishwas Developers Private Limited,
Dhantoli, Nagpur in Writ Petition No.2566 of 2018, decided on 5th
September 2018, in which it is held that, “there was mistake on the part
of Counsel to maintain record of dates, in the proceedings in his diary,
which resulted in his absence before Consumer Commission and the
petition deserves to be allowed”. Ld. Counsel for the defendant further
cited on the same point judgment of Hon'ble High Court, Nagpur Bench
in case of Ramesh Natthuji Pachghare and Anr. vs. Madhukar
Motiramji Wankhade and Anr. in Writ Petition No.6630/2015
decided on 02.02.2017, in which it is held that, “a client should not
suffer for the mistake of his Counsel”. In the case in hand also defendant
has pleaded that he should not be required to suffer due to mistake of
his Counsel.
5. As discussed above, in the case in hand also defendant has
pleaded that it was his Counsel's mistake that he did not attend the
matter. Definitely, for mistake of Counsel, a client should not suffer. But
it cannot be overlooked that plaintiff needs to be compensated for the
delay caused due to plaintiff's side. The cause of action for filing the
present Notice of Motion and previous Notice of Motion are different,
therefore, resjudicata is not applicable to the case in hand and
defendant also prayed other reliefs apart from the relief to set aside the
order dated 6th April 2018 in Notice of Motion. Hence, in view of these
circumstances, it will be proper to allow Notice of Motion subject to
cost. Hence, following order:
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ORDER
1. Notice of Motion No.1622 of 2019 is allowed, subject to cost of
Rs.2,000/ to be given by defendant to plaintiff within one week.
2. Notice of Motion No.1622 of 2019 stands disposed of.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 03.10.2019. City Civil Court,
Gr. Bombay.
Dictated on : 03.10.2019
Transcribed on : 03.10.2019
Signed on : 03.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.10.2019 At 05:33 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
03.10.2019
Judgment/Order signed by P.O. on 03.10.2019
Judgment/Order uploaded on 04.10.2019
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